It remains common in many areas for schoolchildren to be given swimming lessons through their schools as part of the physical education curriculum. However, fewer and fewer schools have the space or facilities to provide swimming lessons on their own premises. The solution, as it has long been, is for schools to take their pupils to the local council-run swimming pool instead.

The claimant in Annie Woodland v The Swimming Teachers’ Association & Others[2011] EWHC 2631 (QB) was a ten year old child who had attended a swimming lesson arranged by her school at a swimming pool run by Basildon DC. Tragically, she suffered a head injury during her lesson and now has serious brain damage.

The claimant, through her father, brought a claim in negligence against a number of bodies, one of whom was Essex CC, the local education authority responsible for the school. Neither the lifeguard on duty nor the people running the swimming lessons were employees of Essex CC. Essex CC accepted that it owed a duty to take the reasonable care that a parent would take, and to reasonably ensure that any contractors would be able to fulfil their duties. It denied the existence of a non-delegable duty of care.

Langstaff J agreed with Essex CC, and held that the imposition of a non-delegable duty was unarguable. Previous authority in analogous situations, such as hospitals, denied the existence of a duty and no policy argument required the imposition of one. The accident did not occur on school premises or under the school’s control. It would involve a considerable expansion of liability beyond the standard of a reasonable parent. The appropriate duty was for Essex CC to take reasonable care that the contractors it hired had laid down safe and proper systems of work for their lifeguards.

In the Woodland case, there was little need to impose the non-delegable duty on the education authority (apart from a relative depth of pockets) where there were a number of other more obviously liable defendants. Whether a case with only the education authority as the defendant recoverable from will suggest a different outcome if liability is floated again remains to be seen.

A number of recent posts have highlighted the confusion surrounding the ability of local authorities to continue funding PFI contracts when a school converts to an Academy (Holly Stout, 19 September; Ed Capewell, 17 October). This confusion has held up a number of Academy conversions. One would have thought that the confusion would have been put to rest by the opinion of an eminent education silk that local authorities could continue the funding.

To put the matter beyond any doubt, however, an amendment has been tabled to the Education Bill currently progressing through Parliament. This will provide as follows:

‘In section 6 of AA 2010 (effect of Academy order), after subsection (2) insert -
(2A) Subsection (2) does not prohibit the local authority from providing financial or other assistance in respect of the academy, including by
(a) making payments in respect of some (but not all) of the
expenses of maintaining the academy,
(b) providing premises, goods or services for the academy, or
(c) making premises, goods or services available to be used for
the purposes of the academy.’

With this wrinkle out of the way, we should expect to see an increasing number of schools applying for and achieving Academy status.

The Upper Tribunal has promulgated its decision in two cases (heard together) about the public benefit requirement for educational charities. The judgment runs to 116 pages.

The Upper Tribunal identified the key issues as follows. First, “what the governing instrument of a school (where such an instrument exists at all) needs to provide in order for the school to be capable of being a charity“. Secondly, “what a school actually needs to do to be seen as operating for the public benefit“.

The Upper Tribunal found that a trust which expressly excluded the poor from benefit could not be a charity. Charitable independent schools, like any other charity, must (in return for the privileges of charitable status) operate for the public benefit. This meant that they must run their charity to ensure that the poor could benefit in a way that was more than minimal or tokenistic. Once that threshold was reached, what the trustees decided to do in the running of the school was a matter for them, subject to acting within the range within which trustees can properly act. When it came to considering whether a school which was a charity was operating for the public benefit in accordance with its charitable purposes, the primary focus had to be on the direct benefits which it provided. Scholarships or other forms of direct assistance to students were therefore important. Account could also be taken of other direct benefits, such as arrangements under which students from local state schools could attend classes in subjects not otherwise readily available to them and the sharing of teachers or teaching facilities with local state schools. Account could also be taken of a school making available (whether on the internet or otherwise) teaching materials used in the school and of making available to state schools facilities such as playing fields, sports halls, swimming pools or sports grounds. It concluded that the Charity Commission’s guidance needed to be corrected.

The procedural background to the case highlights the various ways in which issues can reach the Upper Tribunal. One case was a judicial review claim, brought in the Administrative Court by the Independent Schools Council challenging the Charity Commission’s guidance on the public benefit (see our previous post on the topic). When Mr Justice Sales granted permission, he also transferred the JR application to the Tax and Chancery Chamber of the Upper Tribunal. The second set of proceedings was a reference by the Attorney General under the Charities Act 1993, asking the Upper Tribunal to decide certain questions about the operation of charity law in relation to a hypothetical independent school. The Independent Schools Council and Charity Commission were joined as parties to the Attorney General’s reference and it was heard together with the JR application. The National Council for Voluntary Organisations and individuals acting on behalf of the Education Review Group intervened in the JR application and were permitted to make representations in the Attorney General’s reference.

There has recently been a degree of confusion surrounding the role of local authorities vis a vis PFI contractors when a maintained school becomes an academy (see Holly Stout’s post in September here). The Department for Education has therefore published an opinion it has obtained from leading counsel on the issue. You can view both the instructions and the opinion on the DfE’s website and read an article about the issue on the website of the Local Government Lawyer.

Two previous posts on this blog in July 2010 (see Jane Oldham’s here and mine here) have considered the potential legal consequences arising out of the exam paper errors which occurred in summer 2011. Department for Education statistics now show that almost 140,000 papers were affected.

The Department for Education’s regulatory response to this issue is now taking shape. The Department has announced that Ofqual will be given new powers to fine exam boards which make mistakes in exam papers. The direct imposition of financial penalties will add to Ofqual’s current powers, which include withdrawing an exam board’s recognition.

At present the proposals are in outline form. A maximum penalty of 10% of the organisation’s turnover (as opposed to its profit) certainly appears significant, but the circumstances in which this will be imposed remain to be seen. It will also be interesting to see how exam boards react to the prospect of being fined, as opposed to having their recognition, or right to offer certain qualifications, withdrawn.

The Department for Education hopes to provide Ofqual with the new power before the summer 2012 exams. Ofqual is to conduct a 12-week consultation in relation to the proposals, following which legislation is likely to be introduced. As such, more details of the new power are likely to emerge in due course.

On 30 September 2011, DfE issued a Consultation Paper, for response by 6 January 2012, seeking comments on revised statutory guidance on the roles and responsibilities of the Director of Children’s Services (“DCS”) and the Lead Member for Children’s Services (“LMCS”), guidance which is described as being “much shorter” and “less prescriptive” than the current version, and which also takes forward one of the recommendations in Professor Eileen Munro’s review of child protection, that it should not be considered appropriate to give additional functions (that do not relate to children’s services) to DCSs and LMCSs unless exceptional circumstances arise.

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This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.